' CH. SHAHID SAEED, J- Through this consolidated judgment, I intend to dispose of Civil Revision No,382 of 2000 and Civil Revision No,73 of 2000 as common questions of law and fact are involved therein and both the said revisions arise out of one and the same judgment and decree dated 30- 10-1999 passed by Ch. Sajid Mahmood, Additional District Judge, Okara who accepted the appeal filed by respondents-plaintiffs (Sajjad Abbas etc.), set aside the judgment and decree dated 24-7- 1994 passed by Mr. Muhammad Saleem Khan, learned Civil Judge, Depalpur and decreed the suit of the respondents-plaintiffs.
2. Succinctly, the facts leading to the filing of these civil revisions are that the respondents- plaintiffs, filed a suit for declaration and possession of the land measuring 116 kanals 7 marlas, fully described in the plaint, with the averments that Zulqarnain defendant No,13, who is real brother of the plaintiffs, prepared a fictitious general power of attorney dated 8-2-1975, got it registered with the concerned authorities and deposing himself to be the general attorney of the plaintiffs sold the said land to defendants Nos. 1 to 3 vide sale dated No,2401, dated 15-9-1976 fraudulently. It has further been averred in the plaint that at the time of execution of the general power of attorney dated 8-2-1975 and sale deed No,2401, dated 15-9-1976, the plaintiffs were minors, as such, they were not competent to make general power of attorney in favour of anyone. Moreover, the petitioners (defendants Nos.1 to 3)/vendees were fully aware about the minority and ownership of the plaintiffs but they, in connivance with defendant No,13, got the land in dispute transferred in their name on the basis of the said fictitious general power of attorney, therefore, the disputed general power of attorney as well as the sale deed were nullity in the eye of law.
3. The suit was hotly contested by the petitioners on the grounds that they are bona fide purchasers without notice against consideration of Rs,1,45,437.50 from the attorney of the plaintiffs; that they spent huge amount on the development of the land; that they were not aware of the minority of the plaintiffs and that the plaintiffs had become aware of the disputed transactions before 1978 as they filed a suit for declaration on 5-3-1978 through their mother Mst. Suriyya Begum which was dismissed on 8-10-1979 for non-prosecution and want of proof.
4. Out of divergent pleadings of the parties, the learned trial court framed as many as 13 issues including that of relief. After recording oral as well documentary evidence of the parties, the learned trial court vide judgment and decree &led 24-7-1994 declared that the plaintiff were minors at the time of execution of disputed power of attorney but dismissed the suit merely on the ground of limitation. The appeal preferred there against by the respondents-plaintiffs was accepted and the judgment and decree of the learned trial court was set aside. Consequently, the suit of the respondents-plaintiffs was decreed and the respondents- plaintiffs were directed to pay back the sale proceeds of Rs,145,437.50 as well as costs of improvements to the tune of Rs,3,00,000/-. Feeling aggrieved, the petitioners (Yar Muhammad Khan etc.) have filed Civil Revision No,382 of 2000. The respondents (Sajjad Abbas etc.) have filed Civil Revision No,73 of 2000 against the' judgment and decree of the learned first appellate court to the extent of recovery of sale proceeds and cost of development of suit land.
5. Learned counsel for the petitioner inter alia contends that the disputed general power of attorney was duly executed in favour of defendant No,13 namely Zulqarnain (real brother of the plaintiffs) who sold the land to the petitioners. Further contends that the petitioners were not aware about the minority of the plaintiffs. The respondents-plaintiffs, if aggrieved: were obliged to file suit within three years of attaining majority but they did so after a decade, therefore, the suit was badly barred by time. Learned counsel for the petitioners asserts that the petitioners are bona fide purchasers without notice against consideration who have developed the suit land after spending huge amount. Even if the disputed power of attorney is fictitious, it is a matter between the plaintiffs and their brother and the plaintiffs should file a suit for recovery against him instead of filing suit against the petitioners. It is next contended that the mother of the plaintiffs being de facto guardian was fully aware of the disputed sale transaction who herself verified the power of attorney in question. Learned counsel lastly argues that the disputed power of attorney has not been cancelled by the plaintiffs till date. In support of his contentions, learned counsel for the petitioners has relied upon the law laid down in cases Nawab Khan represented by Legal Heir and others v. Zarif Khan and others (1985 SCM R 1428), Aziz Ahmed and others v. Muhammad Ramzan and others (2011 SCM R 921) and Yamin Khan and 5 others v. Rais Jhangli Khan and another (1999 CLC 1755). Learned counsel has prayed that the judgment and decree dated 30-10-1999 passed by learned first appellate court be set aside and the judgment and decree dated 24-7-1994 passed by learned trial court be restored.
6. Conversely, learned counsel for the respondents-plaintiffs has vigorously opposed the contentions raised by learned counsel for the petitioners. He argues that the plaintiffs were minor at the time of execution of disputed general power of attorney and sale deed, therefore, they were neither competent to make a power of attorney nor sell the suit land. He asserts that the disputed transactions are result of fraud as sale proceeds, if any received, were not deposited in the name of the minors. Learned counsel further contends that under the law, if the ,suit land has been in utilization of the alleged vendees who have been taking advantage of produce etc. Therefrom, then they are not entitled to the recovery of the sale proceeds as well as the cost of improvements.
Learned counsel for the respondents-plaintiffs has prayed that the Civil Revision No,382 of 2000 filed by the petitioners- defendants be dismissed while Civil Revision No,73 of 2000 filed by the respondents-plaintiffs be allowed.
7. I have heard the arguments advanced by learned counsel for the parties and perused the record with their able assistance.
8. So far as the contention of learned counsel for the petitioner that the suit was barred by time is concerned, it has been stated in the plaint that the plaintiffs came to know about one month before filing of the, suit, as such, the suit was within limitation as in cases of fraud, the time of limitation starts from the date of knowledge and not from the date of majority as claimed by learned counsel for the petitioners.
9. The other important point is that whether the plaintiffs were minors at the time of execution of general power of attorney or not. In this regard, there is no denial from either side that the respondents-plaintiffs were minors at the time of execution of the general power of attorney and the sale transaction, therefore they were neither competent to make a power of attorney nor sell the suit land. Furthermore, no permission from the guardian judge was obtained before obtaining power of attorney. Or sale transaction. In the circumstances, the petitioners were required to prove through cogent evidence the very basic document, i,e, general power of attorney (Exh. P-6) on the basis of which the disputed sale transaction has been made but the petitioners failed to prove the same by producing marginal witnesses as well as the scribe of Exh.P-6, as -required under Article 79 of Qanun-e-Shahadat Order, 1984. Furthermore, the learned courts below are consistent upon the point that the plaintiffs were minors at the time of disputed. Transactions. It is also not convincing that the petitioners were unaware of the minority of the plaintiffs as the parties are front door neighbours. The petitioners could also not point out anything from the record that they are bona fide purchasers. The learned trial court through its judgment and decree dated 24-7-1994 held that the plaintiffs were minors at the time of disputed transactions but the petitioners did not file any cross-objection in the appeal filed by the respondents before the learned first appellate court. It means that they admitted the position that the plaintiffs were minors at the time of disputed transactions. Moreover, during the course of arguments, learned counsel for .The petitioners has not disputed the minority of the plaintiffs; he has only contended that the plaintiffs were bound to file the suit within three years of attaining majority which is misconceived.
10. It is evident from the record t deposited in the name of the plaintiffs their mother or brothers in their state spent on the minors, as such, it cannot was sold in the interest of the minors observes that the plaintiffs being min general power of attorney, therefore; transactions made on the basis of said also be void as it is settled principal transaction/order is void, then the who collapse at the sale proceeds were neither minors not anything was said by ments that the sale proceeds were e said that the land of the minors shows mala fide. This court were not competent to make e same is void, therefore, all the general power of attorney would of law that if the basic Structure raised thereupon will collapse
11. It is well-settled now by superior courts that if the possession of suit land remains with the vendees who duly taken advantage of the produce etc., then the vendees, if suit is decided against them, would not be entitled to receive back the amount of sale proceeds as well as the cost of improvements made thereon. Admittedly, the petitioners are enjoying the possession of the suit land since disputed sale transaction took place, therefore, they are not entitled to return of sale proceeds as F well as the cost of improvements, if any made by them on the land in question.
12. Perusal of record highlights that the petitioners were well in 'knowledge that the plaintiffs were minors at the relevant time, but they in connivance with defendant No:13 got prepared the general power of attorney in favour of defendant No,13 who alienated the suit property in favour of the petitioners. The-petitioners have badly failed to prove the disputed transactions through cogent evidence as required under Article 79 of Qanun-e-Shahadat Order, 1984. The petitioners are not bona fide purchasers in any manner and cannot derive any benefit of their own illegal and wrong doing. No marginal witnesses or scribe was produced by the petitioners-defendants to prove the disputed sale transaction. Learned counsel for the petitioners-defendants has contended that mother as de facto guardian was present at the time of disputed sale transaction, thus the sale transaction was valid. The record shows that the mother of plaintiffs Mst. Suriyya Begum appeared as P.W.3 who neither in examination-in-chief nor in cross-examination supported the version of the petitioners- defendants, therefore, the statement of the mother is not helpful to the petitioners- defendants. In the circumstances, the disputed general power of attorney, sale transactions in favour of the petitioners and all subsequent sale transactions are null & void and the petitioners are not entitled to receive back sale proceeds as well as the cost of improvements of suit property.
I am fortified by the dictums laid down in cases Banarasi Das v. Nathu Mal and others (AIR 1914 Lah.
534) and Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983 SC 53) .
13. The summary of above discussion is that the respondents-plaintiffs were minors at the time of execution of disputed general power of attorney and the sale transaction in favour of the petitioners, as such, they were not competent to make such transactions under the law. No permission was sought from the guardian judge before entering into sale transaction. The petitioners have failed to prove that they are bona fide purchasers. Therefore, the alleged general power of attorney is void and as a consequence, the sale transaction made on the basis of the void general power of attorney in favour of the petitioners and all subsequent sale transactions having no legal sanctity in the eve of taw are also void. Resultantly, Civil Revision No,382 of 2000 filed by the petitioners-defendants is DISMISSED while Civil Revision No,73 of 2000 filed by the respondents-plaintiffs is ALLOWED and the impugned judgment dated 30-10-1999 passed by Ch. Sajid Mahmood, learned Additional District Judge, Okara is modified to the extent that the defendants are not entitled to receive back the sale proceeds as well as the cost of development of the suit land.